I dissent on four grounds:
(1) The majority has misconstrued the meaning of the word “kidnaps” as it is used in Penal Code, section 209;
(2) The term “carries away” is so ambiguous within the context of section 209 as to be meaningless;
(3) The misconduct of the prosecutor in his summation was prejudicial to defendant in the matter of the sentence determined by the jury;
(4) The majority has affirmed the infliction of a penalty so excessive in relation to the defendant’s acts as to transgress the constitutional provision condemning punishments which are cruel or unusual. (Cal. Const., art. I, § 6.)
The jury found the defendant had done these acts:
(1) He seized M. M. and tied her hands behind her with wire. He held a knife in her back while she searched for her billfold. Then he ordered her to crawl through her house to the bedroom. There he robbed her of $17 or $18, raped her, and forced her to an act of fellation. He forced her to move altogether about 75 feet under duress.
(2) He seized L. S. and bound her hands with wire. He dragged her by the hair 3 or 4 feet into a bedroom, then threw her 2 or 3 feet onto the bed. He raped her, forced her to an act of fellation and cut her with his knife. He then dragged her into a second bedroom an unstated distance away and locked her in a closet. He stole $200 in cash and a $4,000 money order.
(3) He seized C. P. in her bedroom and bound her hands with wire. He asked her for her money. She said she had $10 in the kitchen but he did not look for it. He did not take the $1.00 he found in her billfold. Then, to quote the victim, “. . . he helped me up on the bed. ’ ’ The distance was 4 or 5 feet. He then raped her and forced her into perversion.
(4) He seized L. B. in her bedroom and bound her hands with wire. He took valuable jewelry and $30 to $40 in cash. He forced her to walk back about 12 feet to a daybed, and, *413when she complained of, discomfort, he told her to get up and pushed her 4% or 5 feet to a chair. Then he raped her.
(5) He seized and bound the hands of U. H. in her living room. He said he was going to rob her and she said, “ ‘Here is everything I have, go ahead and take it.’ ” She wore jewelry and her purse was on a sofa in the same room. But he took nothing. He pushed her to the floor 5 feet away in the center of the room and forced her into perversion.
For these acts defendant was convicted.on three counts of first degree robbery (Pen. Code, § 211a), .four counts of rape (Pen. Code, § 261, subd. 3), four counts of sex perversion (Pen. Code, § 228a), and five counts of kidnaping with intent to rob and causing bodily harm (Pen. Code, § 209).* The penalty for first degree robbery is not less than five years in the state prison; for rape it is not less than three years in the state prison; for perversion it is not more than 15 years in state prison or not more than one year in the county jail. The judgment was for the term prescribed by law, the terms to run consecutively. The penalty for kidnaping with intent to rob where bodily harm is done to the victim is life imprisonment without the possibility of parole or death. The choice is discretionary with the jury. The jury decided that Wein should die.
The jury also found that defendant did these acts:
(6) He seized and bound K. S., aged 15, shoved her 2 feet into a bedroom, raped her and violated Penal Code, section 288a. Afterwards she walked 8 feet at his command.
(7) He seized and severely beat A. C. He moved her 13 feet into a closet and fled.
(8) He and an accomplice seized A. H. and “dragged her *414out onto the floor,” a distance of about 3 feet. Defendant raped her and committed the perverse act.
For these acts defendant was convicted on two counts of rape, two counts of sex perversion, and two counts of kidnaping as defined by Penal Code, section 207.*
Assuming the jury was correct in its factual findings, the defendant is guilty of the most perverse and outrageous crimes and should be punished severely and with little mercy.
However, it is my conclusion that the defendant did not violate Penal Code, sections 209 or 207, and, assuming arguendo that he did, the penalty of death is excessive to the point of barbarity.
There Was No Violation op Penal Code Sections 209 or 207
Since 1901 there have been two kinds of kidnaping in California. Section 207 was enacted in 1872 and codified the common-law definition. The section originally required that the victim be carried across a county or state line to constitute kidnaping. In 1905 the Legislature inserted the words “. . . or into another part of the same county ...” making it possible to kidnap a victim without crossing a county line. (Stats. 1905, chap. 493, p. 653.)
The Legislature enacted section 209 in 1901. It then provided: “Every person who maliciously, forcibly, or fraudulently takes or entices away any person with intent to restrain such person and thereby to commit extortion or robbery, or exact from the relatives or friends of such person any money or valuable thing, is guilty of a felony, and shall be punished therefor by imprisonment in the state’s prison for life, or any number of years not less than ten.”
There was no use of the word “kidnaping” in the enacting legislation (Stats. 1901, chap. 83, p. 98, §1). This section *415was not meant to redefine kidnaping. The word first appears in Peering’s Penal Code, 1906 edition, in the heading of the section. The Legislature first referred to violations of section 209 as kidnaping in 1933 in the descriptive heading to an amendment to that section (Stats. 1933, chap. 685, p. 1757). These headings are not enacted into law. That amendment read: “Every person who seizes, confines, inveigles, entices, decoys, abducts, conceals, kidnaps or carries away any individual by any means whatsoever with intent to hold or detain, or who holds or detains, such individual for ransom, reward or to commit extortion or robbery or to exact from relatives or friends of such person any money or valuable thing, or who aids or abets any such act, is guilty of a felony and upon conviction thereof shall be punished by life imprisonment without possibility of parole in cases in which the person or persons subjected to such kidnaping suffers or suffer bodily harm inflicted by such kidnapers; or by life imprisonment with possibility of parole in cases where there is no violence and upon the recommendation of the trial jury or in the discretion of the trial judge.”
The verb “kidnaps” was included in the definition of the crime defined by section 209. It cannot be assumed the Legislature meant to define the section 209 crime by itself by using this word. The word must be construed to have a meaning apart from and narrower than the crime defined by section 209. There are two possibilities: (1) It meant common law kidnaping; or (2) it meant kidnaping as defined in section 207. Since the Legislature had already rejected the common-law definition of kidnaping and redefined it, the clear implication is that the word “kidnaps” in section 209 means kidnaping as defined in section 207. This is the contention of the attorney general in his brief in this case.
Section 209 was interpreted from 1933 to 1951 to encompass the act of robbery (for example, People v. Knowles, 35 Cal.2d 175 [217 P.2d 1]; People v. Brown, 29 Cal.2d 555 [176 P.2d 929]). This permitted prosecutors to demand the death sentence successfully for second degree robbery in cases where accompanying crimes outraged the jury. In 1951, the Legislature amended section 209 to its present form. (Stats. 1951, chap. 1749, p. 4167.) (See Pen. Code, § 209, quoted on page 345 of this opinion.) The 1951 amendment declared that section 209 was violated to commit robbery only where the perpetrator “kidnaps or carries away” his victim. These facts point to the conclusion that defendant in this case is *416not gnilty of violating section 209 unless he either kidnaped a victim as defined by section 207 or “carried her away.”
Kidnaping under section 207. Before 1905 Penal Code, section 207, required the victim to be carried outside the county before there was a kidnaping. In Ex parte Keil, 85 Cal. 309 [24 P. 742], defendants forced two victims from their boat in San Pedro harbor and took them under duress to Santa Catalina Island. Defendants were held not guilty of kidnaping because both the island and San Pedro are in Los Angeles County. According to the code commissioner’s notes cited in West’s Annotated Penal Code, sections 1-260, page 622, the 1905 amendment was advisable because of the Keil decision. No other reason is advanced for the amendment than to remove the Keil aberration. This history of section 207 implies that the Legislature was still contemplating kidnaping in terms of movements over considerable distances. The words themselves clearly imply this. If the amendment were intended to include movements of three feet the Legislature would have amended the section by using words designating such minute movements. This is what it did in 1933 when it added such words as “seize” and “confine” to section 209. Significantly, it did not alter the section 207 definition of kidnaping at the 1933 session. It meant only to make more inclusive the false imprisonment of persons for extortion, ransom, and robbery, and therefore amended section 209 only. It is also significant that when the Legislature amended section 207 in 1905 it did not alter or abolish section 236 which defines the crime of false imprisonment as “the unlawful violation of the personal liberty of another.” It appears that section 236 was aimed to punish violations of liberty not gross enough to be described as a carrying into another part of the same county.
Almost all of the California eases which review convictions under section 207 concerned asportations over considerable distances, usually many miles. All of them involved greater distances than are represented by the kidnaping of which Wein was convicted. None of them involved asportations entirely within one enclosed place. In all of them the asportation was from a place where the intended ancillary crime was difficult of consummation to a place where it was more easily done. This was not so in Wein.
Three cases affirmed convictions under section 207 in which the asportation was not great. In none of them was the issue of distance discussed by the court. All of them were decided *417after People v. Tanner, 3 Cal.2d 279 [44 P.2d 324], which associated the term “kidnaping” with the short-haul abduction in that case. Tanner was convicted under section 209.
In People v. Hunter, 49 Cal.App.2d 243 [121 P.2d 529] (1942), defendant dragged one victim 60 yards and another across a railroad track to a pile of ties to rape them. In People v. Cook, 18 Cal.App.2d 625 [64 P.2d 449] (1937), defendant grabbed his victim as she walked in front of his house and dragged her inside to rape her. In People v. Thompson, 133 Cal.App.2d 4 [284 P.2d 39] (1955), defendants forced their victim into their ear and drove him about one and one-half blocks to rob him. The court relied on People v. Chessman, 38 Cal.2d 166 [238 P.2d 1001], for this holding.
A consideration of People v. Tanner, supra, 3 Cal.2d 279, and People v. Knowles, supra, 35 Cal.2d 175, is important at this point. Both were decided on the basis of the 1933 amendment to section 209. In Tanner, defendants seized several members of a household and forced them to move about the house for some hours. In Knowles, defendants forced two store clerks to walk to a storeroom and one of them to return to the front of the store, then return to the rear. An examination of the language in these eases reveals that neither Mr. Justice Seawell in Tanner nor Mr. Justice Traynor in Knowles relied on the terms “kidnaps or carries away” to describe defendants’ acts. In Tanner Mr. Justice Seawell makes it clear that section 209 is not the same crime as kidnaping in section 207. At page 293 he says, regarding the 1901 act: “It will be noted that the forcible taking of any person with intent to commit extortion or robbery, the exact offense of which the defendants were convicted, is made a felony. The only change made by the amendments of 1933 [adding inter alia “kidnaps or carries away”] so far as they affect the instant case was to increase the penalty if the person forcibly taken suffers bodily harm.’’ (Emphasis added.) This means that defendants could have been convicted under the 1901 act before the words “kidnaps or carries away” were added.
Defendants in Tanner attacked the great departure section 209 made from the common-law definition of kidnaping. At page 296 Mr. Justice Seawell says: “No reason had been given why it is not within the purview of the sovereign power of the state to pronounce or classify as an act of kidnaping (following closely the language of the statute), the act of *418seizing and confining a person by any means whatever. ...” (Emphasis that of the court.) The Tanner case therefore does not bear on the meaning of kidnaping as defined by section 207.
The Knowles decision is even clearer in its reliance on terms other than “kidnaps or carries away.” Mr. Justice Traynor cites Tanner at page 184: “On appeal from their conviction under section 209, they [Tanner et ah] contended that their offense was only armed robbery and that the Legislature did not intend to punish it under a kidnapping statute. The court affirmed the conviction, holding that the Legislature is empowered to define criminal offenses as it sees fit and that the statute clearly indicates an intention to punish standstill kidnapping under its provisions. It is suggested that under the statute there must be movement of the victim, under a preconceived plan for protracted detention to obtain property that would not be available in the course of ordinary armed robbery. Defendant seeks to read into the statute a condition that the victim be moved a substantial distance. The statute itself is a refutation of that contention. Movement of the victim is only one of several methods by which the statutory offense may be committed. The statute provides that ‘ Every person who seizes, confines ... or who holds or detains [any] individual... to commit extortion or robbery ... is guilty of a felony.’ ” (Emphasis added.)
These eases left the terms “kidnaps” and “carries away” unconstrued within the context of section 209. In determining the movement necessary to constitute a violation of section 209, all cases relied on Tanner or Knowles.
After the 1951 amendment here under consideration, this court held in People v. Chessman, 38 Cal.2d 166 (see p. 192) [238 P.2d 1001] that defendant’s act of transporting a victim 22 feet was within the compass of “kidnaping or carrying away” in section 209. The majority did not analyze the meaning of the terms in that opinion but rather relied on these authorities:
(1) People v. Raucho, 8 Cal.App.2d 655 [47 P.2d 1108], This ease was decided in 1935 under the broad 1933 amendment to section 209 and the court cited Tanner as its authority that there is no distance requirement under section 209.
(2) People V. Cook, 18 Cal.App.2d 625 [64 P.2d 449], decided in 1937, raised no issue of distance.
(3) People v. Melendrez, 25 Cal.App.2d 490 [77 P.2d 870], *419was a case strictly within the confines of section 209 before 1951.
(4) People v. Shields, 70 Cal.App.2d 628 [161 P.2d 475], decided in 1945, involved a defendant who carried a child an unstated distance to the roof of an apartment from a point in the neighborhood. The issue of distance was not raised.
(5) People v. Oganesoff, 81 Cal.App.2d 709 [184 P.2d 953] (1947), in which defendants forced a woman into their car, drove her from Compton to Torrance, and forced her into a house.
(6) Cox v. State, 203 Ind. 544 [177 N.E. 898, 181 N.E. 469] determined an asportation of 90 feet was sufficient under a statute not similar to Penal Code, section 207. Asportation “ ‘from any place within this state’ ” was made punishable (§ 2426, Burns 1929 Supp.). This patently refers to shorter distances than the terms “into another part of the same county” in section 207. The Indiana statute relates the taking to the place where the taking begins; section 207 refers to the place where it ends.
(7) State v. Taylor, 70 N.D. 201 [293 N.W. 219], held a short-haul asportation to be within a kidnaping statute substantially similar to section 209, in that it employs the words “seized, confines, inveigles, or kidnaps” to describe the crime. The term “kidnap” is not elsewhere described in North Dakota statutes. This ease cites People v. Melendrez, supra, 25 Cal.App.2d 490, as authority for its own holding.
Therefore only two of these eases, Cook and possibly Shields, furnish authority for the proposition that short-haul asportation satisfies section 207. And the issue of whether or not the asportations were sufficient under the section was never before the courts.
It is therefore my opinion that this court should reexamine its construction of the word “kidnaps” as used in section 209 and define it as it was meant to be defined by section 207.
Another consideration ignored by the majority is this: The patent intent of the Legislature in amending section 209 in 1951 was to remove simple robbery from the bounds of section 209. Previously, simple robbery invariably constituted short-haul kidnaping (see “Robbery Becomes Kidnaping,” 3 Stanford L. Rev. 156, a note on People v. Knowles, supra, 35 Cal.2d 175). This legislative intent was followed by Mr. Justice Vallée in reversing a conviction in People v. Taylor, 135 Cal.App.2d 201 [286 P.2d 952], The ease which stimulated the Legislature to action was People v. Knowles, supra, 35 Cal.2d *420175. It is important to note that victims were forced to move in that case and this constituted short-haul kidnaping. In People v. Chessman, 38 Cal.2d 166 (see p. 192) [238 P.2d 1001], this court held the Knowles problem was not solved by the 1951 amendment. As a result of Chessman and the instant decision, while robbery is not per se a violation of section 209, if the robber moves his victim one inch he is subject to the death penalty. This can hardly be described as giving force to the legislative act.
Lastly, if it is possible without doing violence to its words, a statute is to be construed to have a constitutional application. The majority have construed it to provide the death penalty for de minimis. This is within the compass of cruel and unusual punishment and such a construction should be avoided. Section 4 of the Penal Code directs the courts to construe its provisions according to the fair import of their terms, with a view to effect its objects and to promote justice.
I conclude that defendant has not been guilty of kidnaping within the purview of either section 207 or section 209 and the convictions and judgments thereof must be reversed and the counts of the information alleging them stricken.
The Phrase “Carries Away” Is Ambiguous
Even if defendant did not “kidnap” his victims, he would still be guilty of violating section 209 if he “carried away” any one of them. We must therefore scrutinize the phrase “carries away” in section 209.
If we were to say that to “carry away” meant no more than to cause a victim to move one foot we should necessarily include the more rigidly defined term “kidnap,” since any act constituting “kidnaping” would also constitute “carrying away.” This would make “kidnaps” redundant in section 209. “To carry away” must therefore differ from “to kidnap ’ ’ in some way other than in the distance required to consummate the crime. But the statutes and eases of California establish no clue as to the acts which deserve this label. The brief of the attorney general does not attempt to assist us.
Penal Code, section 7, subdivision 16, states: “Words and phrases must be construed according to the context and the approved usage of the language; but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in law, must be construed according to such peculiar and appropriate meaning. ...”
Webster’s Unabridged Dictionary defines “carry away” *421thusly: “a To remove from life [refers to death] ; . . . c To take possession of the mind; to move, sway, or charm; to delude; as, to be carried away by music, or by temptation . . . d To succeed in obtaining; to be victorious in or over; to win; also, Ohs., with it, to gain the victory; carry the day.”
These definitions do not fit the factual context of the instant case, nor do they appear to have any meaning relative to any forced movement of a person.
The word “away” is defined thusly by Webster: “1. On the way; onward; along. 2. Prom a place; hence; thence;—of motion; as, go away; ... 4. a Prom contact or close association ; aside; off ... 5. Prom one’s possession;—with a sense of parting or loss; as, to give one’s heart away. ...”
Meaning 2. of away, “From a place” may be relevant. Still, the term “place” is unclear since it may be used in such contexts as “To move away from the window,” or “to move away from home.” Its meaning as to distance is entirely contextual. To give it a meaning outside a context, as the Legislature has attempted to do, is meaningless. “Away” begs us to answer the query “from what?”
Blackstone says that larceny required a “carrying away.” (Jones, Blackstone, p. 2440.) This element was satisfied by the slightest movement of the item to be taken. The essence of this common law crime was disturbance of possession and the movement of the property had to be accompanied by an intent to terminate the possession permanently. To rip a phrase from a finely woven context would make a crude patchwork of the statute. The disturbance of possession of personalty bears little resemblance to the deprivation of human freedom. They are different social menaces and terms used to describe them necessarily find themselves in dissimilar contexts playing semantical tricks on the unwary. I conclude that the technical meaning of “carries away” is relevant only to the context of personal property law and has no commonly recognized technical application to the realm of crimes against liberty.
The vernacular usage of the term may provide help. Suppose one says, “X carried Y away.” What image arises in the mind of the hearer: Certainly not a picture of X forcing Y to move about a few feet in his own home. Or suppose one wished to describe X’s forcing Y to move from one room to another. Many descriptive words and phrases come to mind before “X carried Y away.” For example, “X forced Y to *422move against his will.” The word “away” just does not fit the facts. If the Legislature intended to include all forced movements within its definition of section 209 kidnaping for robbery, a simpler and clearer term would have been used. This is particularly true in view of the consternation raised by the decision in People v. Knowles, supra. The allusion to the command of Penal Code, section 4, is also pertinent here.
It is apparent that the 1951 amendment was enacted to assuage the mischief of the Knowles holding. In this context, this intent should not be construed into oblivion. And it certainly does not promote justice to hold that the movement of a person four feet is an offense sufficient to warrant the death penalty when the statute is open to another less strict interpretation.
I conclude that the phrase “carries away,” as used in section 209, is undefined and meaningless; and that to hold that it encompasses defendant’s acts is to misconstrue it violently.
The Prejudicial Misconduct of the Deputy District Attorney
While the weight of the evidence is so massive against the defendant that I cannot say the prejudicial misconduct of the deputy district attorney was instrumental in the jury’s finding defendant guilty, I am of the opinion that this misconduct was probably a major influence in the jury’s decision to fix the penalty at death. In other words, this misconduct prejudiced defendant’s chances to receive a life sentence rather than death:
(1) He identified defendant with Caryl Chessman and reminded the jury repeatedly that unless defendant were executed he might be released to commit other sex crimes. He stated that Chessman had been paroled before committing the more publicized crimes of which he was accused. This must have carried considerable weight in the jury’s consideration of the penalty. Yet, defendant and not Chessman was on trial, and defendant was entitled to have his case determined on the record of his own trial.
(2) The inflammatory ephithets used to describe defendant must have had an emotional effect on the minds of the jurors. Powerful words, portraying the images and associations they conjure, participate actively in forming human judgments. In a trial as emotionally conceived as this one was, they are particularly decisive. No objection or admonition could cure this psychological onslaught: Once spoken, the emotional impact of the words was locked in the minds of its hearers. The *423cases cited by the majority to justify requiring an objection, involve the failure to object to evidence. An admonition to ignore certain testimony in reaching a factual conclusion in a logical manner may be effective. But it is far harder to blot out an emotion or a vivid image from the mind of a juror. In this case I do not think it would have been possible. It has been truly said: “You can’t unring a bell.”
The Penalties Inflicted in This Case Constitute Punishments Which Are Cruel or Unusual
Consider the precise acts for which this court is affirming the death penalty. Defendant seized and bound the hands of C. P. She told him where her money was but he took none. He helped her onto a bed 4 or 5 feet away and forced her to perform sex acts. He was clearly guilty of rape and perversion. The penalty for rape is not less than three years in the state prison. For perversion it is not more than 15 years in the state prison or less than one year in the county jail. These were brutal and revolting acts. But for moving C. F. 4 or 5 feet, “helping” her to the bed, he is to be executed. But for this movement he would not have received the death penalty! The case involving U. H. is similar except that he did not rape her. Defendant committed the same atrocities on A. H. as he did on C. F. and in fact did more harm to her than to U. H. But in attacking A. H. he merely threw her to the floor and raped her and committed perversion. But his penalty for this was not death, but two prison terms! Why? Because he did not move her the necessary one inch nor incidentally ask for her money! Of the condemned movements one must ask: What difference did they make? The answer: None.
The above comparisons reflect the absurd position into which this court has backed by following the Tanner, Knowles and Chessman cases to the consistent but irrational ultimate. Holmes’ epigrammatic “A page of history is worth a volume of logic” has found its supreme justification.
In each of the other three situations involving the death penalty, if the victim had not been moved a few feet there would be no death penalty possible. Under the rule of this case a robber who shoves his victim against a wall is eligible for the gas chamber if a prosecutor arbitrarily chooses to ask for that penalty. Essentially section 209 may be used by a zealous prosecutor to kill one who has committed other more socially condemned crimes which carry less severe penalties. *424The instant case is the archetype. The deputy district attorney prosecuting Wein did this overtly. In his summation he demanded the death penalty not for defendant’s moving his victims but for the sexual assaults he made upon them. He cited the military law which inflicts the death penalty for rape. He belabored the lecherous acts allegedly done to L. S., then said: “If this is not treatment which earns this defendant the extreme penalty of death, I never saw any. There is not a red blooded man on this jury, there isn’t a respectable woman on this jury who in my opinion would say otherwise.” His only reference to the movement of L. S. was: “He moves her; that is kidnapping, for the purpose of robbery, as I explained it to you here. ...” He also said: “I have only one regret in arguing this case to you, and that is that under the law of this state, for the reason that the defendant did not announce as his purpose robbery at any time to K. S., that I cannot charge him with kidnapping for the purpose of robbery with bodily harm and ask you to return a sixth verdict of death.”
I conclude that the defendant is in effect, being condemned to death for de minimis acts. Were the case before me, I should also say imprisonment for life or a long term of years would also fall within the scope of cruel or unusual punishment.
This court properly refuses to “draw lines” delineating what distance is sufficient to constitute kidnaping. It is the task of the Legislature. The Legislature attempted by its 1951 amendment to do this and failed to communicate its intent to this court. The court has chosen to label all short-haul asportations “kidnaping.” The holding in this ease that an asportation of four feet is sufficient to send a man to the gas chamber illustrates in unshaded tones that all short-haul asportations must be declared without sections 207 and 209 or not punished by the courts.
This does not mean that no violation of section 207 or section 209 should be punished in the degree determined by the Legislature. It means that the penalties assessed in this particular case are too severe because the statute, as construed by the majority, is overly broad. While precise lines must be drawn by the Legislature, the penalties assessed for the alleged offenses in this case are blatantly on the forbidden side of it. The judiciary may not abdicate its responsibility to condemn a violation of constitutional powers with a question-begging cliche about separation of powers.
*425Mr. Justice McKenna, writing for the Supreme Court in Weems v. United States, 217 U.S. 349, at 378 [30 S.Ct. 544, 54 L.Ed. 793], faced this problem squarely:
“We disclaim the right to assert a judgment against that of the Legislature of the expediency of the laws or the right to oppose the judicial power to the legislative power to define crimes and fix their punishment, unless that power encounters in its exercise a constitutional prohibition. In such case not our discretion but our legal duty, strictly defined and imperative in its direction, is involved. Then the legislative power is brought to the judgment of a power superior to it for the instant. . . . They have no limitation, we repeat, but constitutional ones, and what those are the judiciary must judge.”
Mr. Chief Justice Warren described clearly the problem of definition: ‘ ‘ This Court has had little occasion to give precise contént to the Eighth Amendment, and in an enlightened democracy such as ours, this is not surprising.” (Trop v. Dulles, 26 Law Week 4219 at 4223.)
The eases facing this problem of definition may be divided into four groups:
(1) Those in which the penalty was found not excessive in relation to the offense;
(2) Those in which the court held the Legislature free to prescribe even outrageous penalties;
(3) Those holding the phrase “cruel and unusual punishment” refers only to uncivilized forms of punishment such as quartering;
(4) Those holding punishment clearly disproportionate to the offense to be unconstitutionally cruel, unusual, or both.
The problem in California is simpler than that faced by the federal courts, since our guarantee is stated disjunctively: “Excessive bail shall not be required, nor excessive fines imposed; nor shall cruel or unusual punishments be inflicted.” (Cal. Const., art. I, § 6.)
I believe the most persuasive authority supports my judgment that clearly excessive punishments are unconstitutional.
The defendant in Weems v. United States, supra, 217 U.S. 349, received a statutorily mandatory sentence of 12 years at hard labor in irons plus the permanent loss of many civil rights for falsifying two entries in an official cash book. Mr. Justice McKenna says of this sentence at page 377:
“It is cruel in its excess of imprisonment and that which accompanies and follows imprisonment. It is unusual in its character. Its punishments come under the condemnation *426of the bills of rights, both on account of their degree and kind.”
Chief Justice Warren continued in Trop v. Dulles, supra, 26 Law Week 4219 at 4223, concerning the Weems decision:
“The Court recognized in that case that the words of the Amendment are not precise, and that their scope is not static. The amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”
In O’Neil v. Vermont, 144 U.S. 323 [12 S.Ct. 693, 36 L.Ed. 450], the court held the Eighth Amendment does not inhibit state action. The defendant was sentenced to 54 years in prison for sales of liquor during a single day. Justices Field, Harlan and Brewer dissented on the ground that the Fourteenth Amendment gave the Eighth Amendment protection against the states. They agreed that the inhumane sentence in this case contravened the Eighth Amendment.
Two compelling reasons for condemning excessive sentences are stated in Cox v. State, 203 Ind. 544 [177 N.E. 898, 181 N.E. 469, at 471]. The court quotes United States v. Borromeo, 23 Philippine 279 at 289:
“A contrary view leads to the astounding result that it is impossible to impose a cruel and unusual punishment so long as none of the old and discarded modes of punishment are used; and that there is no restriction upon the power of the legislative department, for example, to prescribe the death penalty by hanging for a misdemeanor, and that the courts would be compelled to impose the penalty. Yet such a punishment for such a crime would be considered extremely cruel and unusual by all right-minded people.”
At page 472 the Indiana court in Cox v. State, 203 Ind. 544 [177 N.E. 898, 181 N.E. 469], suggests that the reason the issue of a punishment’s cruelty and unusualness is not often before the appellate courts is that juries are so constituted as to find persons innocent when the punishment for an alleged offense offends their sense of justice. Obviously this element could not sway the jury so to favor a defendant whose sex crimes cried for vengeance.
The finest exposition of the doctrine of unconstitutional excessiveness is State v. Ross, 55 Ore. 450 [104 P. 596, 42 L.R.A.N.S. 601], Defendant was sentenced to five years in the state prison and fined $576,853.74 for embezzling $288,-426.87 in state funds. He was to be imprisoned in the county jail until the fine was paid, but not longer than 288,426 days *427or approximately 790 years. The court reversed the sentence of imprisonment for nonpayment of the fine on the ground that it was cruel and unusual punishment.
There is language in California eases upholding this position. Ex parte Karlson, 160 Cal. 378, at 383 [117 P. 447, Ann. Cas. 1912D 1334], said the danger that persons imprisoned for contempt were protected against excessive restraint by the constitutional rule against cruel or unusual punishments.
In In re Finley, 1 Cal.App. 198 [81 P. 1041], the court rejected arguments that excessive sentences were not unconstitutional, but held the death penalty for an assault by a life convict was justified. The court said at pages 201-202:
“It is only when the punishment is out of all proportion to the offense, and is beyond question an extraordinary penalty for a crime of ordinary gravity committed under ordinary circumstances, that courts may denounce it as unusual.”
Contra this position is In re O’Shea, 11 Cal.App. 568 [105 P. 776], which contains a dictum, at page 575, that only punishments of a barbarous character, like quartering, are cruel and unusual. (The court used the conjunctive.)
There is language in People v. Tanner, supra, 3 Cal.2d 279, at 298, which may be read to mean that the death penalty for kidnaping is not excessive. But it is insufficient to paste a label to an act and justify enormities by it. This illustrates the profundity of the insight: “What’s in a name?’’ It is tantamount to playing categories with human life. Moving a person four feet does not justify taking life no matter what words describe the act.
Other eases which uphold the proposition that excessiveness is fatal to a sentence are; Application of Cannon, 203 Ore. 629 [281 P.2d 233] (life imprisonment for assault to commit rape held cruel and unusual); State v. Devore, 225 Iowa 815 [281 N.W. 740, 118 A.L.R. 1104] (imprisonment until fine paid held cruel and unusual); Williams v. State, 125 Ark. 269 [188 S.W. 826] (sentence to solitary confinement for a misdemeanor held cruel and unusual); State v. Whitaker, 48 La. Ann. 527 [19 So. 457, 35 L.R.A. 561] (sentence of six years for destroying plants held cruel and unusual); State v. Driver, 78 Kenan’s N.C. Repts. 366 (N.C.) (imprisonment in county jail for five years and recognizance of $500 to keep the peace for five years thereafter for assault and battery held cruel and unusual); Sinclair v. State, 161 Miss. 142 [132 So. 581 at 582, 74 A.L.R. 241] (two justices’ concurring opinion said sentencing an insane person to life imprisonment is *428cruel and unusual); State v. Moilen, 140 Minn. 112 [167 N.W. 345, 347, 1 A.L.R. 331] (a prison term flagrantly excessive would be cruel and unusual); McDonald v. Commonwealth, 173 Mass. 322 [53 N.E. 874, 875, 73 Am.St.Rep. 293] (imprisonment may be so long as to be cruel and unusual).
I conclude that the death penalties inflicted on this defendant for moving five victims from four to 75 feet cannot stand in the face of the constitutional mandate that cruel or unusual punishment may not be inflicted. The judgments must therefore be reversed. The acts of moving K. S. 10 feet and A. C. 13 feet are serious enough to warrant punishment. The minimum punishment prescribed for these acts, one year in the state prison, may not be excessive for them.
Appellant’s petition for a rehearing was denied June 25, 1958. Carter, J., was of the opinion that the petition should be granted.
“Any person who seizes, confines, inveigles, entices, decoys, abducts, conceals, kidnaps, or carries away any individual by any means whatsoever with intent to hold or detain or who holds or detains, such individual for ransom, reward or to commit extortion or to exact from relatives or friends of such person any money or valuable thing, or any person who kidnaps or carries away any individual to commit robbery, or any person who aids or abets any such act, is guilty of a felony and upon conviction thereof shall suffer death or shall be punished by imprisonment in the state prison for life without possibility of parole, at the discretion of the jury trying the same, in cases in which the person or persons subjected to such kidnaping suffers or suffer bodily harm or shall be punished by imprisonment in the state prison for life with possibility of parole in cases where such person or persons do not suffer bodily harm.
“Any person serving a sentence of imprisonment for life without possibility of parole following a conviction under this section as it read prior to the effective date of this act shall be eligible for a release on parole as if he had been sentenced to imprisonment for life with possibility of parole.” (Pen. Code, § 209.)
“Every person who forcibly steals, takes, or arrests any person in this state, and carries him into another country, state, or county, or into another part of the same county, or who forcibly takes or arrests any person, with a design to take him out of this state, without having established a claim, according to the laws of the United States, or of this state, or who hires, persuades, entices, decoys, or seduces by false promises, misrepresentations, or the like, any person to go out of this state, or to be taken or removed therefrom for the purpose and with the intent to sell such person into slavery or involuntary servitude, or otherwise to employ him for his own use, or to the use of another, without the free-will and consent of such persuaded person; and every person who, being out of this state, abducts or takes by force or fraud any person contrary to the law of the place where such act is committed, and brings, sends, or conveys such person within the limits of this state, and is afterwards found within the limits thereof, is guilty of kidnaping.” (Pen. Code, § 207.)